INTERNATIONAL HUMAN RIGHTS

LouvainX online course [Louv2x] - prof. Olivier De Schutter

READING MATERIAL

related to: section 3, sub-section 1, Unit 2: Diplomatic Assurances

Report of the Special Rapporteur on the question of torture, Manfred Nowak,

submitted to the sixty-second session of the Commission on Human Rights,

E/CN.4/2006/6 23 December 2005, para. 31:

(a) The principle of non-refoulement (CAT, art. 3; ECHR, art. 3; International Covenant

on Civil and Political Rights (ICCPR), art. 7) is an absolute obligation deriving from

the absolute and non-derogable nature of the prohibition of torture;

(b) Diplomatic assurances are sought from countries with a proven record of systematic

torture, i.e. the very fact that such diplomatic assurances are sought is an

acknowledgement that the requested State, in the opinion of the requesting State, is

practising torture. In most cases, those individuals in relation to whom diplomatic

assurances are being sought belong to a high-risk group (‘Islamic fundamentalists’);

(c) It is often the case that the requesting and the requested States are parties to CAT,

ICCPR and other treaties absolutely prohibiting torture. Rather than using all their

diplomatic and legal powers as States parties to hold other States parties accountable

for their violations, requesting States, by means of diplomatic assurances, seek only an

exception from the practice of torture for a few individuals, which leads to double

standards vis-à-vis other detainees in those countries;

(d) Diplomatic assurances are not legally binding. It is therefore unclear why States that

violate binding obligations under treaty and customary international law should

comply with non-binding assurances. Another important question in this regard is

whether the authority providing such diplomatic assurances has the power to enforce

them vis-à-vis its own security forces;

(e) Post-return monitoring mechanisms are no guarantee against torture – even the best

monitoring mechanisms (e.g. ICRC and CPT) are not ‘watertight’ safeguards against

torture;

(f) The individual concerned has no recourse if assurances are violated;

(g) In most cases, diplomatic assurances do not contain any sanctions in case they are

violated, i.e. there is no accountability of the requested or requesting State, and

therefore the perpetrators of torture are not brought to justice;

(h) Both States have a common interest in denying that returned persons were subjected to

torture. Therefore, where States have identified independent organizations to

undertake monitoring functions under the agreement, these interests may translate into

undue political pressure upon these monitoring bodies, particularly where one is

LouvainX online course [Louv2x] - prof. Olivier De Schutter

Reading Material

[version of January 2015] 2

funded by the sending and/or receiving State.